Saturday, September 20, 2014

Stop Me Before I Comb Again - UPDATE

So you're hangin' in the neighborhood barbershop waiting for a chair to open so you can get a trim. There are five, maybe six barbers working, a whole bunch of customers sitting around, talking, reading comics, the paper, old magazines. School's starting soon, so there are a bunch of kids there. Gonna get cleaned up for that first day of school.There's a couple of cops inside, dressed in civvies, just kind of looking around. This is, after all, this barbershop is in a black neighborhood. Or a Latino one. So you gotta figure someone's dealing crack and someone else is fencing hot TVs. And surely everyone is armed to to teeth and itchin' for a fight. Just sayin'.In Berry v. Leslie, Judge Rosenbaum of the 11th Circuit Court of Appeals tells what happened next.

Shortly after the arrival of the plain-clothes officers, a “whole bunch” of police cars pulled into the shopping plaza and completely blocked off the parking lot, preventing all ingress and egress. Officers then “rushed into” Strictly Skillz “like [a] SWAT team.” Based on the plaintiffs’ collective recollection, it appears that somewhere between eight and ten officers, including narcotics agents, descended upon the barbershop, along with a DBPR inspector. Some of the officers donned masks and bulletproof vests and had their guns drawn. The officers immediately ordered all of the customers to exit the shop and announced that the shop was “closed down indefinitely.”

Because, you know, one or another of the barbers might not have been licensed. That's why the DBPR (Department of Business and Professional Regulation) inspector was there. They have a duty to enforce the law that says barbers have to be licensed. They get to check every two years. They did their check (one guy walked in, asked to see the licenses, saw them, and complemented the owner of Strictly Skillz on keeping the place up properly) two days earlier and all was well at Stricktly Skillz, but hey, you never know. This is Orange County Florida, after all. And the ghetto.And so the DBPR folk teamed up with the OCSO (that's Orange County Sheriff's Office) and their neat masks and vests and guns. They came in with the plastic handcuffs and lots of shouting and threatening. Because hey, unlicensed barbers. And the ghetto.

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Did you know that there are some 12,000 bayonets out there that the military has made available to local police departments? At a Senate hearing last month on the military's devolution of MRAPs and anti-tank missiles and grenade launchers and the like to your friendly neighborhood constabulary, Rand Paul asked Alan Estevez, the Pentagon’s principal deputy undersecretary for acquisition, technology, and logistics, why those 12,000 bayonets have been made available. Of what possible use could they be?

“I cannot answer what use bayonets would be,” Estevez said.“I can answer it for you,” Senator Paul said. “None.”

Even in Florida, where the locals have 45 MRAPs to protect their officers from IEDs on suburban byways but the National Guard has none because why the fuck would they need any, they were apparently able to send a narcotics officer and kevlar protected and masked police to determine whether the barbers had licenses without using a single MRAP. And without any bayonets, I should add.

[And, by the way, think of the danger from having your hair cut by someone without state certification and approval. My god. The result might not be altogether satisfying. But Florida (like every other state, I should add) has insured that nobody ever gets a haircut they don't like. Praise God! But I digress.]

Anyway, and back to the story I started this with, Brian Berry, who owns Strictly Skillz, sued the officers who conducted the raid. Who said, as cops are wont,

See, here's how it works. Police need a warrant and probable cause to conduct a search. These folks had neither a warrant nor probable cause. They had, they said, an exception to that rule. Because the Fourth Amendment, which says the government can't conduct searches without probable cause and really shouldn't without a warrant, doesn't actually mean that anymore. 'Cause if it did, that would be the end of the Republic. (You know, unlicensed barbers releasing unregulated hair gel on unsuspecting customers.)

There are, the Supreme Court has said, exceptions to the Fourth Amendment's requirements. One is for what are known as "administrative searches." Judge Rosenbaum explained (citations omitted).

One of those limited exceptions involves administrative inspections of “closely regulated” industries. Because an owner or operator of commercial property “has a reduced expectation of privacy” in this context, the standard for what may be reasonable under the Fourth Amendment is correspondingly broader.To fall within this exception, a warrantless inspection must satisfy three criteria: (1) “a ‘substantial’ government interest [must] inform[] the regulatory scheme pursuant to which the inspection is made”; (2) the inspection “must be necessary to further [the] regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant. The regulatory “statute must [also] be sufficiently comprehensive and defined” such that it “limits the discretion of inspecting officers.” “‘Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.’”But even when the criteria set forth above are met, to satisfy the Fourth Amendment, an administrative inspection must be “appropriately limited” in both scope and execution and may not serve as a backdoor for undertaking a warrantless search unsupported by probable cause. Above all, such inspections may never circumvent the Fourth Amendment’s requirement for reasonableness. In this regard, “an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.”

If you're inclined to think sending a SWAT team to find out if a barber has a license is overly intrusive . . . . Well, so do Judge Rosenbaum and the other two panel members. Then again, they've got history to look at.

We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

I'd hope so, too.

But I wouldn't believe it for a minute.

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h/t Hilary S (who also provided the title of this post)

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UPDATE

Radley Balko wrote about the same story in his blog at the Washington Post.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.